to convert into salt pans 150 Beegas of land, being, again, land other than that upon which the timber in question is growing.

1867.

RUTTONJI

EDULJI SHET

V.

THE

COLLECTOR OF

Over and above these three objects, he was to be styled the "Farmer" of the village; not that he was TANNA. to have possession of other parts of the village, or to dispossess those already in occupation-not that he was to be the cultivator or Farmer of other parts in the English sense of the term "Farmer"-but, as the 12th section expressly provides, "In respect to the above-named village, you are considered Farmer thereof; you are, therefore, to exercise the authority vested in Farmers by chap. 6 of Regulation XVII. of 1827, or such as may be hereafter vested in them by any new enactment."

Upon referring to this Regulation, it is apparent that the term "Farmer" is used, not as a cultivator of the ground, but as a Farmer of the public revenue, a person, namely, who would stand between the Government and the Ryots as possessors of the ground in the village; he being, as it were, the custodian or Ranger, taking care that the revenue of the Government was collected, and the rights of the Government as against the possessors in the village maintained.

At the time, then, that this lease was made, the whole of the land, and all the rights connected with the land, subject to such claims as third parties might have upon it, belonged to the Government. The trees upon the land were part of the land, and the right to cut down and sell those trees was incident to the proprietorship of the land.

The Appellant, therefore, who complains of an interruption such as is described in his plaint, must

1867.

RUTTONJI EDULJI SHET

v.

THE

COLLECTOR OF

ΤΑΝΝΑ.

ground his title to these trees, and the right to cut
them down, either upon this, first, that it is a neces-
incident of the lease by reason of the objects of
sary
the lease; or, secondly, under some positive law; or,
thirdly, under some custom to be incorporated in the
lease; or, fourthly, under the express terms of the
lease.

Now, as regards the right to cut timber being necessarily incident to the lease, it plainly is not so. There was no work to be done, and apparently no right to execute any work, upon the land on which this timber grows. Clearance or cultivation of the other land might require the cutting of timber on that other land, but that right does not come into question in the present suit.

As to positive law, none has been cited to justify what has been done by the present Appellant. We were referred to Bombay Regulation I. of 1808 with regard to the Island of Salsette; but, so far as that Regulation is concerned, the whole drift and tenor of it, when it deals with timber at all, is in favour of the preservation of the right, and not of the surrender of the right, in the Government to the timber.

The Appellant, however, relies upon a custom which he says justified the cutting of timber; and evidence of that custom has been adduced.

Their Lordships would entertain very considerable doubt whether any evidence of custom could be allowed to control the express stipulations which they find in the lease of this village; but, turning to the evidence which has been given in support of the alleged custom, their Lordships find that several of the witnesses, speaking to that custom, admit that the villages upon which they say timber has been cut

E

down by the Lessees, were villages leased under
written contracts,-contracts which dealt, in some
way or other, with the subject of the timber; con.
tracts, therefore, which prevented any general custom
flowing out of the rights exercised by those tenants.
Their Lordships find that other of the witnesses,
when speaking of the timber cut on other villages,
expressly state that that timber has been cut, not as
of right, but by permission of the Government. And
their Lordships find generally with respect to all the
witnesses, or all but one, that they are silent as to
any information leading them to judge whether the
timber which they say was cut, was cut for the pur-
pose of repairs or other consumption in the villages,
or was cut for the purpose of clearance or cultivation,
or cut (as the right to cut is here alleged) for the
purpose of sale or other disposition as property of
the tenant.

Their Lordships, therefore, are of opinion that
the allegation of custom entirely fails to be supported
by evidence.

With regard, lastly, to any express right given by the lease itself, their Lordships can find none; on the contrary, the 6th clause, which has been already referred to, expressly declares that only such portion of the rights of the Government as may be therein specifically granted is thereby granted to the Lessee.

The 4th clause, however, was said by implication to confer the right to cut that timber. The words of that clause are these:-"You are prohibited from cutting down or destroying any brab, date, or other trees liable to taxation, without the permission of the Collector."

1867.

RUTTONJI EDULJI SHET

v.

THE COLLECTOR OF

TANNA.

1867.

RUTTONJI

Their Lordships, however, do not consider that this clause is susceptible of the implication which is

EDULJI SHET derived from it by the Appellant.

V.

THE COLLECTOR OF TANNA.

In the course of clearing and cultivating the waste land which the Appellant was obliged to clear and to cultivate, it naturally would be requisite to cut down and remove the timber growing upon that waste land, and their Lordships read that permission as simply declaring that if, with reference to that timber which it would thus be necessary to cut down and remove, any of it was "brab, date, or other trees liable to taxation "--even as to such timber, none should be removed without the express permission of the Collector.

Their Lordships, therefore, are of opinion that the case of the Appellant entirely fails; they concur with the judgments pronounced by the Judge of the District Court, and by the appellate Court at Bombay; and they will humbly advise Her Majesty that the appeal should be dismissed with costs.

THE appeal in this case was brought from a decree 11th & 12th

July, 1867.

A. by Deed of trust

estate to se

cure, among other things,

of the High Court in Calcutta, varying and amending a previous decree made by two of the Judges of that Court, in its ordinary original civil jurisdiction, in charged real a suit instituted by Richard Stuart Palmer, since deceased, and afterwards represented by the Respon- a debt alleged dents, his Executors, against the Appellant, together to be due by with Obhoychurn Bonnerjee, an Insolvent debtor, grandfather's Ramessur Chowdry, a Trustee, and John Cochrane,

* Present:-Members of the Judicial Committee-The Right Hon. Lord Cairns, the Right Hon. Sir James William Colvile, the Right Hon. Sir Edward Vaughan Williams, and the Right Hon. Sir Richard Torin Kindersley.

Assessor:-The Right Hon. Sir Lawrence Peel.

a

him to his

estate, on

account of
sums received
by him from
a debtor to
A. at that

that estate.

time was
in a state of
indebtedness,
which occa-

sioned his afterwards becoming an Insolvent. Such Deed, in the circumsances, held, so far as related to A.'s alleged debt, fraudulent and void as against his Creditors.

On a Bill filed by the Assignees of the Insolvent to cancel such a Deed, the property being immovable, and the parties (Defendants) claiming a lien thereon for bona fide debts, the remedy, if any equity exists, independent of the deed, would be by a cross Bill.

The rule of the appellate Court is, that it will not, on a question of fact, reverse an unanimous judgment of the Courts in India, unless the very clearest proof is shown that such decision is erroneous.